Canada: Pregnancy Can Trigger The Right To Refuse Work, Says Supreme Court Of Canada

In Dionne v. Commission scolaire des Patriots, the
Supreme Court of Canada has ruled that pregnancy is not an
incapacity which prevents a worker from performing work but rather,
is a condition which makes a worker more vulnerable to dangers in
the workplace. A statutory "right to refuse"
therefore protects a pregnant worker's employment status when
she declines work that may be dangerous during pregnancy.

The Law in Question

The Province of Quebec's occupational health and safety
statute has provisions which require employers to
"protectively re-assign" a pregnant worker whose regular
working conditions constitute a hazard to the worker or her unborn
child. The worker must hand in a Preventive Withdrawal and
Reassignment Certificate (the "Certificate') completed by
a doctor, to identify her limitations and the dangers to her health
or that of fetus.

If an employer does not make such a re-assignment the worker can
stop work until re-assigned or until the delivery of the
child. The employer pays the worker's salary for
five days and thereafter, a public fund pays the worker 90 percent
of her net salary while absent due to the danger at
work. The worker's employment status and related
benefits are not interrupted. Entitlement to these benefits
is determined by the Commission de la santé et de la
sécurité du travail ("the CSST"), the
workers' compensation agency in Quebec.

The Case

The Commission scolaire des Patriots ("the School
Board") hired Marilyne Dionne as a supply teacher. Ms.
Dionne was essentially "on call" to perform shifts as a
teacher. She was frequently called in for several years.

In September 2006 before starting the school year as a supply
teacher, Ms. Dionne became pregnant. Due to her
susceptibility to certain viruses her doctor completed Certificates
for the CSST. The CSST advised her that the Certificate
could not take effect until she was contracted during the school
year to supply teach. Once Ms. Dionne was called by the
School Board (November 13, 2006) and offered work, the CSST viewed
her as having a contract of employment and it triggered her
entitlements to preventive reassignment (and the income
indemnity).

The School Board appealed to the Commission des lésions
professionnelles ("CLP") arguing Ms. Dionne's
incapacity to enter the classroom meant that no contract of
employment was ever formed with her. Not being under contract
she could not be a worker and thus, the CLP found, she had no
rights under the Act to protection or indemnity. Both the
Superior Court and the Quebec Court of Appeal found this to be a
reasonable interpretation of the Act. Ms. Dionne and her
union did not, appealing to the Supreme Court of Canada.

The Decision of the Supreme Court of Canada

Under the Quebec Civil Code, a contract of employment
exists when these conditions are present: performance of
work, payment of wages, and a relationship of subordination between
the parties. The Quebec Court of Appeal and lower
Courts concluded that if a worker exercises the right to refuse
work that is dangerous, she must be incapable of performing the
work being offered. If the work cannot be performed, no
contract of employment can exist. Therefore, the person is not a
"worker" with rights to protective reassignment or
indemnity under the Act.

Justice Abella, writing for a unanimous Supreme Court of Canada,
took a firm view:

The scheme is intended to protect
pregnant workers who have a contract to work. It would be
anomalous, to say the least, to use the legislated right of a
pregnant worker to withdraw from an unsafe workplace to conclude
that her withdrawal negates the formation of the contract of
employment.

The Court found that a purposive interpretation of the Act was
necessary in order to interpret its terms:

The Act defines "worker"
differently than does the Civil Code — a person who carries
out work even without remuneration rather than an employee who
works for remuneration. It is therefore clear that the legislative
intention was to reach a much broader worker constituency than that
contemplated by "employee" in the Civil Code. This
more generous interpretation of "worker" is warranted not
only by the Act's status as being of public order, it is
permitted by the preamble to the Code, which allows other laws to
"complement the Code or make exceptions to it"

Justice Abella went on to note that under the occupational
health and safety law, a person who refuses dangerous work is
deemed to still be an employee. To exclude an employee from
employment status, because she was in danger and unable to do the
work, would work against the very meaning of the law:

if Ms. Dionne had not been pregnant,
there would be no dispute that she would be entitled to a healthy
and safe work environment each time she went into the school to
teach, as would any "worker" under the Act. A
pregnant supply teacher is no less qualified for employment than a
teacher who is not pregnant, and her aptitude and qualifications do
not change upon becoming pregnant.

The Court concluded that when Ms. Dionne accepted an offer of
supply teaching work on November 13, 2006 she did, in fact, form a
contract of employment notwithstanding that she was unable to
safely perform the job duties. And the Court makes it crystal
clear about what it means to be a pregnant worker:

Her pregnancy was not an incapacity
that prevented her from performing the work, it was the dangerous
workplace, and that in turn triggered her statutory right to
substitute that work with a safe task or withdraw.

Implications for Employers

The Court has declared that pregnancy is not so much an
incapacitating condition, as a condition which makes the worker
more susceptible to certain workplace risks. The presence of
such danger triggers the worker's right to refuse work (as
defined in the occupational safety law applicable to the
workplace).

For employers where protective reassignment is offered to
pregnant workers, such as Quebec, the implications of the Dionne
ruling are simple: reassignment or indemnity must be provided to
any person offered work, whether she can do the original work or
not.

A broader implication of the Dionne decision is this: where an
employer makes an offer of work to an individual, that individual
can accept the offer and then refuse to perform the work, in whole
or in part, if the work poses a "danger" to her or
him. The person's right to refuse protects his or
her employment status while the danger is assessed and
controlled.

While the Dionne ruling may be surprising in that respect, it
appears complementary to the duty to accommodate under most human
rights legislation in Canada. Where an employer makes an
offer of work to an individual, that person is entitled to accept
it and then ask for accommodation. The employer is then
obligated to accommodate to "the point of undue
hardship." In practice this differs little from what the
Court has decided in Dionne.

The Dionne decision underscores the rule that public welfare
statutes, such as occupational health and safety laws, will be
interpreted broadly and purposively. While the lower Courts
may have been technically accurate defining employment narrowly,
the outcome – disenfranchising a pregnant worker from rights
created to protect pregnant workers, because she was
pregnant, is not one the Supreme Court of Canada would likely
accept easily, as we have seen.

The case is also proof of an old nostrum in the legal
profession, when arguing a case: "it is good to have the law,
but it is better to have the facts."

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Data protection presents one of the biggest challenges for both trustees and employers in 2018. As data controllers get ready for the GDPR, they are faced with problems in ensuring that existing processes and policies comply with the new law.

This Q&A session, led by pensions and information lawyers, will focus on practical solutions for how trustees and employers should deal with member communications, third party service providers and reporting data breaches, as well as any other areas that affect you.

Data protection presents one of the biggest challenges for both trustees and employers in 2018. As data controllers get ready for the GDPR, they are faced with problems in ensuring that existing processes and policies comply with the new law.

This Q&A session, led by pensions and information lawyers, will focus on practical solutions for how trustees and employers should deal with member communications, third party service providers and reporting data breaches, as well as any other areas that affect you.

2018 is set to be another big year in employment, with employers set to face new challenges and responsibilities. At our event, looking ahead to next year, we will be discussing four key issues you might face in 2018, providing useful tips and answering your questions.

Jackie VanDerMeulen is the author of the articled titled, "Once bitten, twice shy: greater scrutiny ahead for employees misclassified as contractors" which appears in the International Law Office Newsletter.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here

If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you
are granted a non-exclusive, revocable license to access the Website under its
terms and conditions of use. Your use of the Website constitutes your agreement
to the following terms and conditions of use. Mondaq Ltd may terminate your use
of the Website if you are in breach of these terms and conditions or if Mondaq
Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to
read the full text of the content and articles available (the Content). You may
not modify, publish, transmit, transfer or sell, reproduce, create derivative
works from, distribute, perform, link, display, or in any way exploit any of the
Content, in whole or in part, except as expressly permitted in these terms &
conditions or with the prior written consent of Mondaq Ltd. You may not use
electronic or other means to extract details or information about Mondaq.com’s
content, users or contributors in order to offer them any services or products
which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the
suitability of the information contained in the documents and related graphics
published on this server for any purpose. All such documents and related
graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or
its respective suppliers hereby disclaim all warranties and conditions with
regard to this information, including all implied warranties and conditions of
merchantability, fitness for a particular purpose, title and non-infringement.
In no event shall Mondaq Ltd and/or its respective suppliers be liable for any
special, indirect or consequential damages or any damages whatsoever resulting
from loss of use, data or profits, whether in an action of contract, negligence
or other tortious action, arising out of or in connection with the use or
performance of information available from this server.

The documents and related graphics published on this server could include
technical inaccuracies or typographical errors. Changes are periodically added
to the information herein. Mondaq Ltd and/or its respective suppliers may make
improvements and/or changes in the product(s) and/or the program(s) described
herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally
identifies you, including what sort of information you are interested in, for
three primary purposes:

To allow you to personalize the Mondaq websites you are visiting.

To enable features such as password reminder, newsletter alerts, email a
colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq (and its affiliate sites) do not sell or provide your details to third
parties other than information providers. The reason we provide our information
providers with this information is so that they can measure the response their
articles are receiving and provide you with information about their products and
services.

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to
view the free information on the site. We also collect information from our
users at several different points on the websites: this is so that we can
customise the sites according to individual usage, provide 'session-aware'
functionality, and ensure that content is acquired and developed appropriately.
This gives us an overall picture of our user profiles, which in turn shows to
our Editorial Contributors the type of person they are reaching by posting
articles on Mondaq (and its affiliate sites) – meaning more free content for
registered users.

We are only able to provide the material on the Mondaq (and its affiliate
sites) site free to site visitors because we can pass on information about the
pages that users are viewing and the personal information users provide to us
(e.g. email addresses) to reputable contributing firms such as law firms who
author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us
not to disclose your details to any of these parties, please tick the box above
or tick the box marked "Opt out of Registration Information Disclosure" on the
Your Profile page. We and our author organisations may only contact you via
email or other means if you allow us to do so. Users can opt out of contact when
they register on the site, or send an email to unsubscribe@mondaq.com with “no
disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate
registration form. This is a personalised service where users choose regions and
topics of interest and we send it only to those users who have requested it.
Users can stop receiving these Alerts by going to the Mondaq News Alerts page
and deselecting all interest areas. In the same way users can amend their
personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an
identifying user number. The cookies do not contain any personal information
about users. We use the cookie so users do not have to log in every time they
use the service and the cookie will automatically expire if you do not visit the
Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to
personalise a user's experience of the site (for example to show information
specific to a user's region). As the Mondaq sites are fully personalised and
cookies are essential to its core technology the site will function
unpredictably with browsers that do not support cookies - or where cookies are
disabled (in these circumstances we advise you to attempt to locate the
information you require elsewhere on the web). However if you are concerned
about the presence of a Mondaq cookie on your machine you can also choose to
expire the cookie immediately (remove it) by selecting the 'Log Off' menu option
as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example,
advertisers). However, we have no access to or control over these cookies and we
are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement,
and gather broad demographic information for aggregate use. IP addresses are not
linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or
its affiliate sites) are not responsible for the privacy practices of such other
sites. We encourage our users to be aware when they leave our site and to read
the privacy statements of these third party sites. This privacy statement
applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or
contests. Participation in these surveys or contests is completely voluntary and
the user therefore has a choice whether or not to disclose any information
requested. Information requested may include contact information (such as name
and delivery address), and demographic information (such as postcode, age
level). Contact information will be used to notify the winners and award prizes.
Survey information will be used for purposes of monitoring or improving the
functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our
site, we ask them for the friend’s name and email address. Mondaq stores this
information and may contact the friend to invite them to register with Mondaq,
but they will not be contacted more than once. The friend may contact Mondaq to
request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’
information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.

By clicking Register you state you have read and agree to our Terms and Conditions